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INALSUPREME COURT OF OHIO
Sandy Parrish, Admin.,
Plaintiff-Appellee,
vs.
Christopher J. Skocik, D.O., et al.,
Defendants-Appellants.
Supreme Court Case No.
On Appeal from the RossCounty Court of Appeals, FourthAppellate DistrictCase No. 11 CA3238
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTSCHRISTOPHER J. SKOCIK, D.O. AND FAMILY MEDICINE OF
CHILLICOTHE, INC.
Kenneth S. Blumenthal (0008908)Jonathan R. Stoudt (0083839)Rourke & Blumenthal, LLP495 S. High Street, Suite 450Columbus, OH 43215kblumenthalgrandbllp.com(614) 220-9200 Telephone(614) 22 V- 7 7 V V Fal:Jilitiic
Attorney for Plaintiff-Appellee
Kevin W. Popham (0066335)Gregory B. Foliano (0047239)Arnold Todaro & Welch Co., L.P.A.2075 Marble Cliff Office ParkColumbus, OH 43215kpophamgarnoldlaw.net(614) 485-1800 Telephone/r1 dl dQQ_7Odd Fareimilaw.T^T....-.i. . ......,........
Attorney for Defendants-Appellants
Frederick A. Sewards (0046647)Hammond Sewards & Williams556 E. Town StreetColumbus, OH 43215fsewards&hswlawyers.com(614) 228-6061 Telephone(614) 228-5883 FacsimileAttorney for DefendantMichael Jones, D.O.
^?AR `? 0 A?Ol;?
0 LE Ri'k 0F G'0 UR"rLSU^t9URT OF OHIO
TABLE OF CONTENTS
Pase
TABLE OF AUTHORITIES ............................................................... ii
EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GENERALINTEREST . .. . . . . . . . . . . .. .. . . ... . . . .... . . . . ... . . . . . . ... . .. . . . ... . . .... . . .. . . . . ... . . . . ... . . .. .. I
STATEMENT OF THE CASE ............................................................ 4
STATEMENT OF FACTS ................................................ ............ ...... 5
LAW AND ARGUMENT ......... ... ................................................ ...... 8
CONCLUSION ... . . . .. . . . . . . . . . . . . . . . . ... . . . . . . .. . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . : . . . . . . . .. . . . 11
PROOF OF SERV ICE . . . . . . . . . . . . . . . . . . ... . . . . . . ... . . . . .. . . . . . . . . . . . . .. . . . . ... . . . . .. . . . . . .. 12
TABLE OF AUTHORITIES
Paee
CASES:
Archer v. City ofPort Clinton, 6 Ohio St.2d 74 .........................................1, 2, 3, 8
Blankenship v. Kennard, Franklin App. 93AP-415, 1993 WL 318825 ...............4, 10, 11
Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480 ........................:..3
Columbia Gas of Ohio, Inc. v. Robinson, 81 Ohio Misc.2d 15 (Ohio Mun., 1995)..........9
DeVore v. Mut. of Omaha Ins. Co., 32 Ohio App.2d 36, 38 (7' Dist. 1972) ..................3
Taylor v. U.S. Health Corp., 4th Dist. No. 96-CA-2457, 1997 WL 34160 .....................2
Vest, a Minor, v. Kramer, 158 Ohio St. 78, 107 N.E.2d 105 ...................:..................2
Wildi v. Hondros College, 10th Dist. No. 09AP-346, 2009-Ohio-5205 .........................3
Wright v. Suzuki Motor Corp., 4th Dist. Nos. 03CA3 & 03CA4, 2005-Ohio-3494............2
CIVIL RULES:
Civil Rule 8(A) .................................................................................2, 3, 9Civil Rule 8(E) .....................................................................................3, 9Civil Rule 10 .....................................................................:.............4, 8, 10Civil Rule 50 ................................................................................................3, 4, 8, 9, 10, 11Civil Rule 54 ................................................................................................................4, 8, 9
ii
EXPLANATION OF WHY THIS CASE IS
OF PUBLIC OR GREAT GENERAL INTEREST
This cause presents a single critical issue for the future of civil litigation in Ohio:
whether a trial court is required to incorporate the allegations contained in the pleadings, along
with the opening statement, when ruling on a motion for directed verdict made at the close of
opening statement of the opponent.
The lower courts in this matter reached conflicting results on whether the Complaint must
be considered by the trial court when ruling on a motion for directed verdict made at the close of
Plaintiff s opening statement. This case presents issues of public or great general interest not
only in medical negligence litigation, but also for all civil litigation arising under the Ohio Rules
of Civil Procedure, because disparate rulings on whether or not the pleadings are to be properly
considered in this context should not arise. Moreover, the holding of the Fourth District Court of
Appeals in this matter is in conflict with a previous decision by the Tenth District Court of
Appeals, inter alia, on the same issue. A Motion to Certify Conflict is currently pending before
the Fourth District Court of Appeals. The vastly differing interpretation by the Fourth District
Court of Common Pleas and the Tenth District Court of Appeals, as well as between other
district courts, illustrates the difficulty which parties and courts throughout the state have in
applying this concept. Thus, guidance from this Court is needed to properly understand and
apply the law on this issue, particularly in light of this Court's decision in Archer v. City of Port
Clinton, 6 Ohio St.2d 74, which was issued in 1966 during the era of code-based "fact pleading"
prior to implementation of the Ohio Rules of Civil Procedure in 1970 that ushered in the era of
"notice pleading."
1
In this matter, the Court of Appeals unanimously held that the trial court was in error in
failing to consider the allegations in the complaint when it granted these Defendants/Appellants'
motion for directed verdict at the close of Plaintiffs opening statement. The Court of Appeals
based its decision on Archer, supra; Taylor v. U.S. Health Corp., 4th Dist No. 96-CA-2457, 1997
WL 346160, *5; and Wright v. Suzuki Motor Corp., 4th Dist. Nos. 03CA3 & 03CA4, 2005-Ohio-
3494, ¶ 99. The Court reasoned that the complaint must be considered in determining whether a
directed verdict is appropriate.
In Archer this Court held that "A motion for a directed verdict in favor of a defendant
interposed after the opening statement raises a question of law on the facts presented by that
statement and the petition, all of which must be considered." *76 at [1] citing Vest, a Minor, v.
Kramer, 158 Ohio St. 78, 107 N.E.2d 105. (emphasis added) However, both Vest and Archer
were decided in the litigation era prior to the implementation of the Ohio Rules of Civil
Procedure in 1970. Accordingly, Appellants believe that this Court should re-visit and analyze
the issue in light of modem notice pleading practice.
Until 1968, when the Modem Courts Amendment to the Ohio Constitution was adopted,
Ohio court procedure was governed entirely by statute and case law. The Modem Courts
Amendment required this Court, subject to the approval of the General Assembly, to prescribe
rules governing practice and procedure in all courts of the state. Baldwin's Ohio Revised Code
Annotated, Rules of Civil Procedure Publisher's Note. The Ohio Rules of Civil Procedure were
adopted in 1970 and became effective July 1, 1970. Civ.R. 8(A) "Claims for Relief'
"denominates the action as a`claim for relief rather than a`cause of action.' In addition,
throughout the rules generally, the original pleading is denominated a`complaint' rather than a
`petition.' The language change (cause of action becomes a claim for relief and petition becomes
2
complaint) is purposeful; the language change indicates that `rule' pleading is a departure from
hidebound `fact' pleading. The rules seek to free pleading from the interminable battles over the
form of the pleadings under a Field Code." 1970 Staff Notes to Civ.R. 8(A).
Under the Ohio Rules of Civil procedure, Ohio is a notice pleading state. Accordingly,
Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.
Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 29. "Notice pleading
under Civ.R. 8(A) and 8(E) requires that a claim concisely set forth only those operative facts
sufficient to give `fair notice of the nature of the action."' Wildi v. Hondros College, 10th Dist.
No. 09AP-346, 2009-Ohio-5205, ¶ 12, quoting DeVore v. Mut. Of Omaha Ins. Co., 32 Ohio
App.2d 36, 38 (7" Dist.1972) Civ.R. 8(A)(1) states that a complaint need only contain "a short
and plain statement of the claim showing that the party is entitled to relie£" In the modem era of
notice pleading a plaintiff is not required to plead operative facts. This change in pleading
practice was brought about by the concern for prolixity under code-based fonn pleading prior to
adoption of the Rules of Civil Procedure. Where operative facts are not required in a complaint a
trial court should not be required to consider the complaint, in order to ascertain whether or not a
party has plead facts sufficient to support allegations contained therein, when ruling on a Civ.R.
50 motion for directed verdict on the opening statement of the opponent.
It is this historical backdrop that provides context for analysis of the Civ.R. 50 provision
for directed verdict upon the opening statement of the opponent. This Court's Archer decision in
1966 pre-dates adoption of the Ohio Rules of Civil Procedure. As such, the Archer Court did not
analyze the issue in the context of Civ.R. 50. Additionally, Archer notes reference to the
"petition" rather than the Complaint. Under fact based form pleading in a petition, plaintiffs
would aver many more facts than offered under modem notice pleading. In fact, it is not
3
uncommon in the context of medical negligence litigation for a plaintiff to merely aver that a
defendant was negligent without providing any operative facts supporting the allegations of
negligence. Accordingly, in July 2005 the rules of civil procedure were amended to add a
provision under Civ.R. 10(D) mandating that an affidavit of merit be filed to establish the
sufficiency of a complaint containing medical claims. For purposes of a motion for directed
verdict pursuant to Civ.R. 50, why should a trial court be required to consider the allegations
contained in a medical negligence complaint when such a complaint standing alone is
insufficient absent expert testimonial evidence suppordng the facts and allegations contained
therein? Finally, application of Archer creates a conflict between Civ.R. 54 - Judgment on the
pleadings and Civ.R. 50 - Directed verdict. This conflict is illustrated by the Tenth District
Court of Appeals in Blankenship v. Kennard, Franklin App. 93AP-415, 1993 WL 318825. These
conflicts, as well as the disparate practice prior to adoption of the rules of civil procedure
compared to modem notice pleading, present a conflicting application of Ohio law and are,
therefore, an issue of great general interest critical to future civil litigation in Ohio.
1. STATEMENT OF THE CASE
This lawsuit was originally commenced by Plaintiff/Appellee Sandy Parrish on
December 21, 2005, against Michael Jones, D.O., Adena Regional Medical Center Corporation,
and Chillicothe Nursing and Rehabilitation Center. Appellants Christopher Skocik, D.O., and
Family Medicine of Chillicothe, Inc. (hereinafter referred to collectively as "Dr. Skocik"), were
named in an amended complaint filed July 13, 2006. Subsequently, on August 20, 2008, Dr.
Skocik was voluntarily dismissed. On October 29, 2008, the trial court granted Plaintiff leave to
file a third amended complaintl renaming Dr. Skocik as a party defendant.
'On October 3, 2006 Plaintiff was granted leave to file a second amended complaint, which is of no consequence tothe appellate issues herein.
4
The lawsuit proceeded through discovery, culminating in a jury trial commencing
January 11, 2011 against Dr. Skocik and Co-Defendant Dr. Jones. Following voir dire, Appellee
gave his opening statement. During the course of the opening statement, Appellee's counsel
described to the jury in opening statement at length the evidence Appellee would present
regarding the negligence of Dr. Jones. Appellee's opening statement also addressed issues of
causation. However, Appellee's opening statement never addressed any negligence or deviation
from the standard of care by Dr. Skocik. In passing, Appellee's counsel noted that Dr. Jones
would present an expert who will be critical of Dr. Skocik. However, nowhere in Appellee's
counsel's opening statement did he represent to the jury that Appellee would be presenting any
evidence in his case in chief that Dr. Skocik had deviated from the standard of care in the
treatment provided to Appellee's decedent.
Accordingly, at the conclusion of Appellee's opening statement, the trial court directed a
verdict in favor of Dr. Skocik, as the opening statement established that Appellee could not meet
his burden of proof as to the claims against Dr. Skocik.
The case proceeded to a defense jury verdict in favor of Dr. Jones. Appellee
subsequently filed a motion for new trial, which was denied by the trial court. Thereafter,
Appellee perfected an appeal to the Fourth District Court of Appeals on issues relating to both
Dr. Skocik and Dr. Jones. On February 15, 2012, the Appellate Court issued a decision
reversing the directed verdict in favor of Dr. Skocik and affirming the defense verdict in favor of
Dr. Jones.
II. STATEMENT OF FACTS
In December 2004, Appellee's decedent, Karen Parrish, developed numbness in her
fingers and toes and muscle weakness in her legs. On December 27, 2004, she presented to the
5
emergency department at Adena Regional Medical Center where she was diagnosed with Bell's
Palsy; she was discharged with steroid medication to treat that condition. On December 30,
2004, her condition deteriorated to the point that she could no longer stand or walk and she
returned to Adena where she was admitted for inpatient treatment. Michael Jones, D.O., a
neurologist, was her admitting/attending physician for this admission. Dr. Jones diagnosed Mrs.
Parrish with a neurological disorder, Guillain-Barre Syndrome. During the hospitalization, Dr.
Jones requested a consultation from pulmonologist Elie Saab, who placed Mrs. Parrish on an
anticoagulant medication, Lovenox, for the prevention of blood clots. Mrs. Parrish was at
increased risk for the development of blood clots in her legs, a condition known as deep venous
thrombosis (DVT), which can lead to blood clots migrating to the lungs, i.e. pulmonary
embolism (PE) due to her immobility caused by the Guillain-Barre Syndrome and due to her
obesity. After being prescribed Lovenox by Dr. Saab, she was given Lovenox on a daily basis
for the remainder of the hospitalization, including the day of discharge.
Her neurologic condition improved, and on January 7, 2005, Mrs. Parrish was discharged
by Dr. Jones to the Chillicothe Nursing and Rehabilitation Center (CNRC) for continued
recovery and rehabilitation. At the time of her discharge from Adena Regional Medical Center,
Dr. Jones completed a continuity of care form outlining the treatment Mrs. Parrish should receive
upon arrival at CNRC. However, Dr. Jones did not include Lovenox or any other DVT
prophylaxis in those orders. Mrs. Parrish arrived at CNRC on the evening of Friday, January 7th.
The nursing staff at CNRC notified Dr. Skocik of her arrival and reviewed the continuity of care
form with him. As the Medical Director at CNRC, Dr. Skocik visits patients on Thursdays. His
expectation was that he would see this new patient, Karen Parrish, the following Thursday,
January 13th. In the days following her admission, Mrs. Parrish underwent physical therapy to
6
help her regain her strength. At approximately 11:00 a.m: on Tuesday, January 11`h, she was
discovered unresponsive and was transferred back to Adena Regional Medical Center but
unfortunately died that day. An autopsy revealed that she suffered a large pulmonary embolism
which was the cause of her death.
In his complaint, Appellee alleged that Dr. Jones and Dr. Skocik were negligent in failing
to order prophylactic anticoagulant medications upon Mrs. Parrish's discharge from Adena
Regional Medical Center and admission to CNRC, leading to the development of a blood clot
that caused the fatal PE. However, Appellee had no expert witness who would testify that Dr.
Skocik was negligent in this regard. At trial, Appellee's counsel described to the jury in opening
statement at length the evidence Appellee would present regarding the negligence of Dr. Jones in
failing to list Lovenox or some other anticoagulant medication on the continuity of care form
when Mrs. Parrish was transferred from Adena to CNRC. Appellee's opening statement also
addressed how the failure to provide anticoagulant medication led to the development of the
blood clot that caused the fatal PE. However, Appellee's opening statement never addressed any
negligence or deviation from the standard of care by Dr. Skocik. In passing, Appellee's counsel
noted that Dr. Jones would argue that the development of the PE was the fault of Dr. Skocik in
not prescribing anticoagulant medication, and told the jury that Dr. Jones would present an
expert who would be critical of Dr. Skocik. However, nowhere in Appellee's opening statement
did he represent to the jury that Appellee would be presenting any evidence in his case in chief
that Dr. Skocik had deviated from the standard of care in the treatment provided to Karen
Parrish.
7
III. LAW AND ARGUMENT
In the modem era of notice pleading under the Ohio Rules of Civil Procedure, Ohio trial
courts should not be required to incorporate the pleadings when ruling upon a motion for
directed made pursuant to Civ.R. 50 at the close of the opponent's opening statement for the
reasons that the Archer precedent requiring courts to do so was issued in the fact-based code
pleading era prior to the adoption of Civ.R. 50, that requiring courts to do so creates a conflict
between Civ.R. 50 and Civ.R. 54, that requiring courts to do so does not comport with the tenets
of notice pleading; and that requiring courts to do so is inconsistent with other provisions of the
rules of civil procedure, i.e. Civ.R. 10(D)(2), which implicitly refuses to take at face value the
facts plead in a complaint on a medical claim.
On April 13, 1966 - some four years prior to the adoption of the Ohio Rules of Civil
Procedure, this Court issued its decision in Archer, supra, citing Vest, supra. The Vest Court
held that "a motion by defendant for judgment on the pleadings and statement of counsel for the
plaintiff is an admission by the defendant, for the purposes of the motion, of the truth of the well
pleaded facts, the statement of counsel and all proper inferences which may be drawn therefrom
and leaves no disputed facts to be determined by the jury but only a question of law for the
court." Id at syllabus 2. Again, the Vest decision was rendered in 1952, prior to the adoption of
the rules of civil procedure which now distinguish between a motion for judgment on the
pleadings pursuant to Civ.R. 54 and motion for directed verdict pursuant to Civ.R. 50. The
distinction is important and provides mutually exclusive opportunities for judgment at differing
points in the litigation process. The provision for judgment on the pleadings is separate and
distinct from a directed verdict upon opening statement and serves to promote judicial economy.
8
The Ohio Rules of Civil Procedure require "notice pleading" rather than fact pleading;
notice pleading merely requires that the claim concisely set forth only those operative facts
sufficient to give fair notice of nature of action, and, except in very narrow circumstances,
plaintiff is not required to plead operative facts of his or her case with particularity. Columbia
Gas of Ohio, Inc. v. Robinson, 81 Ohio Misc.2d 15 (Ohio Mun., 1995) citing Civ.R. 8(A, E). At
the outset of a civil lawsuit, under the civil rules a plaintiff need only state a "cause of action," an
allegation, rather than operative facts in support of such allegation. If the plaintiff fails to set
forth a cognizable cause of action, then the defendant is afforded the opporhxnity to obtain
judgment early in the litigation, in accordance with Civ.R. 54. However, if the allegations of the
complaint set forth a cognizable claim, then the parties engage discovery to reveal the underlying
facts in support of the allegations. It is these "discovered" facts, which are anticipated to be
introduced through evidence at trial, that must be imparted to the jury during opening statement
in order to survive a motion for directed verdict pursuant to Civ.R. 50. Often allegations change
during the course of discovery, even to the point of discovery that a defendant has no culpability
and is consequently dismissed from the lawsuit. In short, under the rules of civil procedure, a
complaint contains allegations which may or may not bear out during discovery of facts.
Therefore, it is proper for a trial court to consider only the opening statement, vis-a-vis the facts
anticipated to be proven at trial, and not the allegations of a complaint drafted under notice
pleading standards when making a determination of directed verdict pursuant to Civ.R. 50. The
Vest and Archer precedents were established in an era of practice quite different from today's
notice pleading era. Therefore, this Court should re-visit the standard for granting a directed
verdict made pursuant to Civ.R. 50(A)(1).
9
Requiring a trial court to incorporate the pleadings when confronted with a Civ.R. 50
motion for directed verdict creates a conflict between Civ.R. 50 and 54. This conflict was
highlighted in Blankenship v. Kennard, (10th Dist.), Franklin App. No. 93AP-415, 1993 WL
318825, wherein the 106' District Court of Appeals rejected the notion that the trial court was
required to incorporate the pleadings into the opening statement in order to augment that
statement and then determine its sufficiency. The court noted that by the time a case reaches
trial, simple fairness demands that a plaintiff should be able to make a statement concisely
explaining why a particular defendant should be held liable. Moreover, the court noted that the
requirement to incorporate the pleadings with the opening statement would essentially render
Civil Rule 50(A) meaningless. As the court explained:
The only time a directed verdict could be granted at the close ofopening statement would be when the complaint also failed to statea claim upon which relief could be granted. Presumably, in suchcircumstances, the complaint would already have been dismissedor summary judgment would have been granted long before trial.For Civil Rule 50 to be meaningfal in allowing directed verdict atthe close of opening statement, the rule must contemplate a reviewof what.was actually set forth in opening statement.
AccordinQlv, this Court is urged to re-visit the issue in light of the guidelines established by the
Ohio Rules of Civil Procedure that provide for separate and distinct forms of judgment.
Finally, an analysis of mechanics of a medical claim reveal that Civ.R. 10(D)(2) requires
additional support in the fonn of an expert affidavit for medical claims. In this circumstance, our
justice system does not take the allegations contained in a complaint at face value. So why
should these same allegations be taken at face value and seemingly given greater credence in the
context of a Civ.R. 50 motion for directed verdict?
10
CONCLUSION
In the modem era of notice pleading under the Ohio Rules of Civil Procedure, Ohio trial
courts should not be required to incorporate the pleadings when ruling upon a motion for
directed verdict made pursuant to Civ.R. 50 at the close of the opponent's opening statement. As
pointed out by the Blankenship Court "By the time the actual fact-finding process has begun, a
plaintiff should be able to make a statement in court which concisely states the reason why a
named defendant should be held liable. Simple fairness for those who are being sued demands no
less." If counsel cannot or does not make such a statement, the trial court should be well within
its discretion to sustain a motion for a directed verdict. To preserve the integrityof the judicial
process, to promote judicial economy, and to reconcile modem civil practice with precedent
established prior to the advent of the Ohio Rules of Civil Procedure, Appellants Christopher J.
Skocik, D.O. and Family Medicine of Chillicothe, Inc., respectfully request that this Court accept
jurisdiction of this case and reinstate judgment in their favor.
Respectfully submitted,
ARNOLD TOI Q^BC V̂CH CO., L.P.A.
/®
By:am (0066335)
egoi3yB. Voliano (0047239)2075 Marble Cliff Office ParkColumbus, OH [email protected]: (614) 485-1800Fax: (614) 485-1944Counsel for Defendants-Appellants
11
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing was
served upon all parties or counsel of record by regular U.S. mail, postage prepaid, this L!^! I
day of March, 2012.
Kenneth S. Blumenthal, Esq.Jonathan R. Stoudt, Esq.Rourke & Blumenthal, LLP495 S. High Street, Suite 450Columbus, OH 43215Counsel for Plaintiff-Appellee
Frederick A. Sewards, Esq.Hammond Sewards & Williams556 E. Town StreetColumbus, OH 43215Counsel for Defendant Michael Jones, D.O.
12
Cf}l;R'f OF A i'i'c ALS
IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT
ROSS COUNTY2012 Fi^.G 15 AIM 10: 19
ROSS i i]l..N f'2 FV Yi 30."i ^^.
SANDY PARRISH, ADMINISTRATOR, : Case No. 11CA323gLEti"OF 00J rsET AL., Ti U. Qi?h r!)Ft
Plaintiffs-Appellants,
V.
MICHAEL E. JONES, ET AL.,
Defendants-Appel lees.
APPEARANCES:
DECISION ANDJUDGMENT ENTRY
Kenneth S. Blumenthal and Jonathan R. Stoudt, Rourke & Blumenthal, LLP, Columbus,Ohio, for appellant.
Gregory Foliano and Kevin Popham, Arnold Todaro & Welch Co., LPA, Columbus,Ohio, for appellees Christopher J. Skocik, D.O., and Family Medicine of Chillicothe, Inc.
Frederick A. Sewards, Hammond Sewards & Williams, Columbus, Ohio, for appelleeMichael E. Jones.
Harsha, J.
{9I1} Sandy Parrish filed this case alleging medical negligence and the wrongful
death of his late wife. His appeal initially contests the trial court's directed verdict in
favor of Christopher Skocik, D.O. and Family Medicine of Chillicothe (Family Medicine)
following opening statements. Mr. Parrish asserts that he was not required to
specifically set forth all the elements of his case against Dr. Skocik in his opening
statement, and it was therefore sufficient to survive a motion for a directed verdict. Mr.
Parrish also argues that the trial court erred by not allowing him the opportunity to
amend, supplement or explain his opening statement and by failing to consider the
allegations in his complaint before ruling on the motion for directed verdict. Because
Ross App. No. 11 CA3238
the trial court failed to consider the complaint, which sets forth sufficient facts to
establish a cause of action for medical negligence, we find that the trial court erred in
granting Dr. Skocik's and Family Medicine's motion for directed verdict.
{1I2} Mr. Parrish also appeals the trial court's denial of his motion for a new
trial. He claims the directed verdict in favor of Dr. Skocik and Family Medicine
prevented him from receiving a fair trial on his remaining claim against Michael Jones,
D.O. because Dr. Jones was able to assert Dr. Skocik's negligence as a defense.
Specifically, he contends that the absence of Dr. Skocik's expert witnesses, who were
expected to offer criticisms of Dr. Jones medical treatment, forced Mr. Parrish to defend
Dr. Skocik's actions alone. However, it was Mr. Parrish's burden to prove his medical
negligence claims against Dr. Jones. This burden included introducing whatever
evidence was necessary, including expert testimony, to establish negligence. Even
though the trial court erroneously granted the motion for directed verdict, that mistake
neither absolved nor increased that burden. Therefore the court did not err in denying
Mr. Parrish's motion for a new trial.
1. FACTS
{43} Acting individually and as the administrator of his wife's estate, Mr. Parrish
filed a series of complaints asserting that Dr. Skocik, Family Medicine, Dr. Jones, and
several other medical providers are liable for the wrongful death of Mrs. Parrish and
medical negligence in her treatment. Mrs. Parrish was admitted to Adena Regional
Medical Center for acute peripheral nerve disorder. Her physician, Dr. Jones,
diagnosed her with Guillain-Barre Syndrome and after consulting with a specialist,
placed her on the medication Lovenox to prevent blood clots from forming in her legs.
Ross App. No. 11 CA3238
Subsequently, Dr. Jones discharged Mrs. Parrish to Chillicothe Nursing and
Rehabilitation Center where she continued to receive care; however, she did not
continue to receive Lovenox. While at the facility, Dr. Skocik was assigned to provide
medical care to Mrs. Parrish. Unfortunately, four days after her arrival at the
rehabilitation center, Mrs. Parrish passed away from a pulmonary embolism.
{94} Mr. Parrish alleges in his complaint that various medical professionals
negligently provided medical care and treatment to his wife by failing "to exercise the
degree of skill, care and diligence an ordinarily prudent physician and/or health care
provider would have exercised under like or similar circumstances." He explicitly
contends that the defendants failed to properly treat, to prescribe anti-coagulation
therapy, to adequately monitor, to timely respond with medical intervention, and to
properly diagnose Mrs. Parrish's injury and condition. And as a result of this
negligence, Mr. Parrish alleges Mrs. Parrish suffered a premature death.
{9I5} The case proceeded to a jury trial and at the conclusion of Mr. Parrish's
opening statement, Dr. Skocik and Family Medicine moved for a directed verdict on the
ground that Mr. Parrish failed to state a cause of action against them. The trial court
heard brief arguments on the motion and subsequently granted the directed verdict.
Consequently, Mr. Parrish tried his case against Dr. Jones only and the jury returned a
verdict in favor of Dr. Jones. Following the verdict, Mr. Parrish moved for a new trial,
which the trial court denied. This appeal followed.
11. ASSIGNMENTS OF ERROR
{116} Mr. Parrish presents two assignments of error for our review:
Ross App. No. 11 CA3236 4
{917} I. "THE TRIAL COURT ERRED IN GRANTING DEFENDANTS[']
CHRISTOPER SKOCIK, D.O AND FAMILY MEDICINE OF CHILLICOTHE, INC.'S
MOTION FOR DIRECTED VERDICT MADE AFTER PLANITIFF-APPELLANT'S
OPENING STATEMENT."
{¶8} II: "THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELANT'S
MOTION FOR NEW TRIAL."
III. DIRECTED VERDICT
{49} Mr. Parrish claims that the trial court erred in granting a directed verdict in
favor of Dr. Skocik and Family Medicine for three reasons. First he argues that his
opening statement was sufficient to survive a directed verdict because he was not
required to specifically set forth all the elements of his case. Furthermore, even if he
was required to do that, he asserts that the trial court did not give him an opportunity to
amend, supplement or explain his opening statement prior to granting the motion for
directed verdict. Finally, he maintains that the trial court erred by failing to consider the
complaint, along with his opening statement, before making its ruling.
n i l c+""`^"r`I{'^. ^A '^
iiaI^.^i°nlin°nr^.e
H. LehJ.al J10.11ua1u wi Ii`^.u.i .yyv
{iI10} To establish a cause of action for medical negligence, a plaintiff must
demonstrate three elements: (1) the existence of a standard of care within the medical
community; (2) breach of that standard of care by the defendant; and (3) proximate
cause between the defendant's breach and the plaintiff's injury. Bruni v. Tatsumi, 46
Ohio St.2d 127, 131, 346 N.E.2d 673 (1976); Rhoads v. Brown, 4th Dist. No. 09CA18,
2010-Ohio-3898, 132. Expert testimony is generally required to prove these elements
Ross App. No. 11 CA3238 5
when they are beyond the common knowledge and understanding of the jury. Rhoads,
at 1( 32.
B. Standard for Directed Verdict
{1I11} We first consider whether the trial court was required to consider the
allegations in Mr. Parrish's complaint, along with his opening statement, when ruling on
the motion. A motion for directed verdict presents a question of law, rather than factual
issues. Goodyear Tire & Rubber Co. v. Aetna. Cas. & Sur. Co., 95 Ohio St.3d 512,
2002-Ohio-2842, 769 N.E.2d 835, V 4. As a question of law, we apply a de novo
standard of review on appeal. See id.
{112} Under Civ.R. 50(A)(1) a party may move for a directed verdict on the
opening statement of the opponent, at the close of the opponent's evidence or at the
close ofall the evidence. When a party moves for a directed verdict on the opening
statement, the trial court "should exercise great caution in sustaining [the] motion."
Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus. To grant
such a motion, "it must be clear that all the facts expected to be proved, and those that
have been stated, do not constitute a cause of action or a defense, and the statement
must be liberally construed in favor of the party against whom the motion has been
made." Id. Moreover, we have previously held that both the opening statement and the
complaint must be considered in determining whether a directed verdict is appropriate.
See Taylor v. U.S. Health Corp., 4th Dist. No. 96-CA-2457, 1997 WL 346160, *5 and
Wright v. Suzuki Motor Corp., 4th Dist. Nos. 03CA3 & 03CA4, 2005-Ohio-3494, 1( 99;
see also Archer v. Port Clinton, 6 Ohio St.2d 74, 76, 215 N.E.2d 707(1966). If the
Ross App. No. 11 CA3238 6
opening statement along with the allegations in the complaint amount to a justiciable
claim for relief when construed liberally, the court must deny that motion. Wright, supra:
g13} In this case, the trial court did not consider the allegations in the complaint
when it granted Dr. Skocik's and Family Medicine's motion for directed verdict. The
record shows the trial court heard brief arguments from counsel for Mr. Parrish and Dr.
Skocik on the motion. During this exchange, the court clarified that Dr. Skocik was
basing his motion on Mr. Parrish's opening statement alone, to which he affirmatively
responded. Subsequently, the trial court reviewed the transcript from Mr. Parrish's
opening statement and granted the motion for directed verdict. In its judgment entry
addressing Mr. Parrish's motion for a new trial, the trial court cites Blankenship v.
Kennard, 10th Dist. No. 92AP-415, 1993 WL 318825, which states no other allegations
are to be incorporated into an opening statement; the entry also confirmed that the court
granted the motion for directed verdict based solely on Mr. Parrish's opening statement.
However, this district does not follow Blankenship and the failure to apply the rule in
Archer, Taylor and Wright resulted in the court improperly granting the motion because
it used the wrong legal standard to decide the motion.
{il14} Accordingly, we find that the trial court erred by granting Dr. Skocik and
Family Medicine's motion for directed verdict and sustain Mr. Parrish's first assignment
of error. As this argument proves dispositive of Mr. Parrish's first assignment of error,
we decline to address his remaining arguments. We also decline to review the merits of
the motion in light of the allegations contained in the complaint. The law requires the
trial court to consider all the necessary factors before rendering its decision. Even
though we apply a de novo standard of review to that judgment, the Supreme Court of
Ross App. No. 11 CA3238 7
Ohio has explicitly directed us to act as a reviewing court, not one that makes the
determination. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360, 604 N.E.2d 138
(1992). See also Commercial Sav. Bank v. City of Jackson, 4th Dist. No.. 97CA798,
1997 WL 626410, *7.
IV. MOTION FOR A NEW TRIAL
{9i15} In his second assignment of error, Mr. Parrish claims that he was
prevented from receiving a fair trial on his claim against Dr. Jones following the directed.
verdict in favor of Dr. Skocik and Family Medicine and therefore the trial court erred by
denying his motion for a new trial. Specifically, he asserts that Dr. Jones was able to
argue Dr. Skocik's negligence as a defense to his own liability without any response
from Dr. Skocik's experts, who were expected to testify in support of Dr. Skocik's acts
and offer criticisms of Dr. Jones. Consequently, Mr. Parrish claims that the act of
defending Dr. Skocik wrongiy fell to him, which resulted in an unfair trial. We disagree.
A. Standard of Review
{1f16} Mr. Parrish bases his argument on subsections (1), (7) and (9) of Civ.R.
59(A), which provide: "A new trial may be granted to all or any of the parties and on all
or part of the issues upon any of the following grounds: (1) Irregularity in the
proceedings of the court, jury, magistrate, or prevailing party, or any order of the court
or magistrate, or abuse of discretion, by which an aggrieved party was prevented from
having a fair trial * * * (7) The judgment is contrary to law * * * (9) Error of law occurring
at the trial and brought to the attention of the trial court by the party making the
application."
Ross App. No. 11 CA3238
{¶17} Depending on the basis of the motion for a new trial, we review the trial
court's decision under either a de novo or an abuse of discretion standard of review.
Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraphs one and two of
syllabus. "Where a trial court is authorized to grant a new trial for a reason which
requires the exercise of sound discretion, the order granting a new trial may be reversed
only upon a showing of abuse of discretion by the trial court." Id. at paragraph one of
syllabus. However, "[w]here a new trial is granted by a trial court, for reasons which
involve no exercise of discretion but only a decision on a question of law, the order
granting a new trial may be reversed upon the basis of a showing that the decision was
erroneous as a matter of law." Id. at paragraph two of syllabus. Accordingly, appellate
courts must review a motion for a new trial made on the basis that there was an error of
law at trial under the de novo standard. See Sully v. Joyce, 10th Dist. Nos. 10AP-1148
& 10AP-1151, 2011-Ohio-3825, 4 8.
{418} Mr. Parrish argues that he did not receive a fair trial because the trial
court erroneously granted Dr. Skocik and Family Medicine's motion for directed verdict.
The decision to grant or deny a motion for directed verdict involves a question of law.
Therefore we review his motion for a new trial under a de novo standard of review.
B. Fairness of the Trial
{9I19} Although we agree that the trial court erroneously granted Dr. Skocik and
Family Medicine's motion for directed verdict, we do not agree that that this error
caused Mr. Parrish to receive an unfair trial. "In a civil case, the plaintiff normally has
the burden of producing evidence to support his case, and the defendant has the
burden of producing evidence of any affirmative defenses." State v. Robinson, 47 Ohio
Ross App. No. 11 CA323b 9
St.2d 103, 107, 351 N.E.2d 88 (1976). Accordingly, it was Mr. Parrish's burden to
establish each element of his medical negligence claim. Dr. Jones was free to defend
this claim by asserting Dr. Skocik's negligence. Mr. Parrish admits that he had notice
that Dr. Jones "intended to push blame" onto Dr. Skocik. Although he claims that he did
not receive a fair trial because Dr. Skocik was not there to defend his own actions, it
was Mr. Parrish's burden to prove his case against Dr. Jones by providing his own
expert testimony. The fact that Mr. Parrish intended to rely on Dr. Skocik's expert
witnesses to counter Dr. Jones defense does not absolve him of the ultimate burden to
prove his case and counter any defenses presented by Dr. Jones. In essence Mr.
Parrish claims it was unfair to allow Dr. Jones to try "the empty chair" at the last minute.
However, if Dr. Skocik had settled with Mr. Parrish right before trial, the burden to prove
that Dr. Jones' negligent conduct caused Mrs. Parrish's death would have remained
with Mr. Parrish. Because he was the plaintiff, this burden was his throughout whatever
course the proceedings took. There was nothing "unfair" about the trial against Dr.
Jones in spite of the erroneous directed verdict in favor of Dr. Skocik and Family
Medicine. Therefore, we overrule his second assignment of error.
V. CONCLUSION
{1I20} In conclusion, we sustain Mr. Parrish's first assignment of error and
reverse the directed verdict in favor Dr. Skocik and Family Medicine. Upon remand the
trial court is to revisit its decision in light of the allegations contained in the amended
complaint. We overrule Mr. Parrish's second assignment of.error and affirm the trial
court's judgment concerning his motion for a new trial.
JUDGMENT AFFIRMED IN PART, REVERSEDIN PART, AND CAUSE REMANDED.
Ross App. No. 11 CA3238 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED INPART and that the CAUSE IS REMANDED. Appellants and Appellees shall split thecosts.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the RossCounty Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date ofthis entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 ofthe Rules of Appellate Procedure. Exceptions.
Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY:Wifliam H. Flarsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgmententry and the time period for further appeal commences from the date of filingwith the clerk.
